Shashikumar S/O Nagnathrao Dixit Vs. State of Maharashtra and ors. - Court Judgment

Excerpt:
civil manual - para 524 - promotion to the post of registrar of the district court - deemed date of promotion - seniority list of junior clerks - seniority on the basis of date of passing the higher standard departmental examination - error in maintaining the list in district court - the authorities directed to grant petitioner deemed date of promotion and to grant all consequential benefits flowing from the grant of deemed date.;from the para 524 of the civil manual, it will be seen that the confirmation in the existing vacancy of a clerk is dependent on his passing the lower standard departmental examination and it is from that date he should be confirmed. if the four persons were appointed on one date for examination i.e. on 1.7.1970 and due for confirmation sometimes in 1975 the seniority list of junior clerks to be maintained should show at serial no. 1 the junior clerk who has passed the examination first, followed by the second junior clerk who has passed the examination thereafter and so on. that being the correct manner of making the seniority list, error had crept in maintaining that list in the district court of osmanabad. the error was not corrected inspite of the request made by the petitioner. ultimately, the petitioner suffered on each count in the matter of promotion.;the respondents are directed to grant deemed date of promotion to the post of the superintendent which was later on called as the post of registrar from 1.9.1992. the petitioner shall also be entitled to grant of all consequential benefits flowing from grant of above deemed date of promotion i.e. 1.9.1992. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act.v.g. palshikar, j.1. by this petition the petitioner seeks a declaration that he is entitled to a deemed date of promotion in the post of registrar of the district court as he had passed lower standard departmental examination earlier than the respondents no. 4 and 5 and in accordance with para 524 of the civil manual he was required to be considered as senior to them.2. the petitioner was appointed as junior clerk on the establishment of the district court, osmanabad, on 1-4-1959, whereas, respondents no. 4 and 5 were appointed as junior clerk on 1-4-1959 and 1-2-1959, respectively. the petitioner passed the lower standard departmental examination (for short, 'examination') in july, 1964, whereas, the respondents no. 4 and 5 passed the examination in july, 1967 and july, 1971, respectively.3. thereafter, the petitioner passed the higher standard departmental examination in july, 1976, whereas, the respondents no. 4 and 5 passed the said examination in july, 1982 and 1983, respectively.4. however, in spite of the provisions of para 524 of the civil manual vol.1, the learned district judge, osmanabad, committed an error in confirming the petitioner and the respondents no. 4 and 5 in the post of junior clerk from the dates of their appointments irrespective of the fact that the petitioner was successful in the examination prior to the respondents no. 4 and 5. this error was carried further in the matter of promotions also. in spite of several representations of the petitioner, no correctional steps were taken with the result that the petitioner was denied promotion to the post of registrar of the district court or even the deemed date of promotion.5. error was committed at every stage of fixation of the seniority as the provisions of para 524 of the civil manual were continuously misread. it is in these circumstances that the petitioner is before this court seeking correction of his dates of promotion by granting deemed dates of promotion.6. the petitioner retired from service on 28-2-1999 i.e. during the pendency of this petition. he, therefore, seeks a direction requiring the respondents to grant him the deemed date of promotion to the post of registrar with effect from 1-9-1992 i.e. when he was entitled to be promoted to the post of superintendent which later on was called registrar.7. the language of para 524 of the civil manual is clear and it reads :'524. in the matter of promotions and confirmations, the district judge should take into consideration the following principles. -- (1) all clerks who pass the lower standard departmental examination should be confirmed immediately in the existing vacancies. such confirmation should not be deferred till the passing of the said examination by their seniors.'from the above provisions, it will be seen that the confirmation in the existing vacancy of a clerk is dependant on his passing the lower standard departmental examination and it is from that date he should be confirmed. if the four persons were appointed on one date for examination i.e. on 1-7-1970 and due for confirmation sometimes in 1975 the seniority list of junior clerks to be maintained should show at serial no. 1 the junior clerk who has passed the examination first, followed by the second junior clerk who has passed the examination thereafter and so on. that being the correct manner of making the seniority list, error had crept in maintaining that list in the district court of osmanabad. the error was not corrected in spite of the request made by the petitioner. ultimately, the petitioner suffered on each count in the matter of promotion.8. the petition, therefore, must succeed and is allowed. the respondents are directed to grant deemed date of promotion to the post of the superintendent which was later on called as the post of registrar from 1-9-1992. the petitioner shall also be entitled to grant of all consequential benefits flowing from grant of above deemed date of promotion i.e. 1-9-1992. the exercise of granting deemed date of promotion and all consequential benefits shall be completed as expeditiously as possible and within a period of six months from the date of receipt of writ of this court. rule is made absolute in above terms. there shall, however, be no order as to costs.